“Interflora” infringed as a search term
M&S had purchased several keywords relating to Interflora from the Google advertising service, Adwords. The well-known arrangement is that if a person searched for the word “Interflora” or related terms, Google would also generate sponsored links to M&S’s online flower-delivery service. Interflora claimed that M&S’s use of Interflora as a keyword constituted trade mark infringement. The European Court of Justice has previously considered trade mark issues raised by keyword advertising in six cases, including the judgment it gave in a response to a referral in this case. Under EU case law, it is well established that the owner of a trade mark can only succeed in a claim for infringement if certain conditions are satisfied. In particular, the use of the trade mark by the alleged infringer must have affected or be liable to affect one or more of the essential functions of the trade mark; that is, its origin, advertising, investment or communication functions. The High Court emphasised that there was nothing inherently or inevitably objectionable from a trade mark perspective in using keyword advertising, but in this case it was the particular nature of Interflora’s business that meant the origin function of its trade mark was adversely affected.
M&S Infringes Interflora
This case is a reminder that sponsored keyword advertising, if not done appropriately, can constitute trade mark infringement. It is the responsibility of the advertiser to ensure that the advertisements make it clear that advertised goods or services do not originate from the keyword trade mark proprietor. Sources: The High Court of England and Wales; The Court of Justice of the European Union.